Fitzgerald: The right to “free exercise” of religion is not absolute

“The US Department of Justice’s civil rights division filed a religious discrimination lawsuit against the New York Department of Correctional Services alleging the city’s prisons discriminated against Muslim officers by barring them from wearing visible symbols of their faith on the job.

The suit was filed Thursday in Manhattan on behalf of Abdus Samad N. Haqq, a prison guard from Brooklyn who was ordered in 2005 to stop wearing a kufi – a knitted skullcap that carries religious significance for many Muslim men – while at work.

‘Americans are not required to abandon their religious beliefs when they report for work,’ said Assistant Attorney General Wan J. Kim in a statement announcing the lawsuit.” — from this article

The right to “free exercise” of religion is not absolute. But the first question might be the one that the Supreme Court has never dared to discuss: what constitutes a “religion” for First Amendment purposes? Islam is a belief-system with many followers — far more than David Koresh had, or that Koolaid man who had so many of his truest believers killed in their Guyana redoubt. Does that mean it is not a “cult”? Does it exhibit any of the features of a “cult”? For example, does a belief-system that punishes by death those who wish to leave it constitute a “cult”? In other words, is a belief-system a “cult” if it does not allow for the free exercise of religion or of conscience, either by those who through no fault of their own were born into it or by those who, perhaps out of a colossal misunderstanding or Serial Search for Meaning Bus that happened to make a stop at “Islam” where someone hastily got off, then found he (or she) was not allowed to get back on that bus the next time it happened to be passing through?

This belief-system is not merely about the worship of some deity, single or plural. It also contains an entire and comprehensive system for the Regulation of Life, and for the Explanation of the Universe. Those may be unpleasant, but they are not necessarily direct threats to Unbelievers. It also contains a geopolitical system which is based on the perceived and inculcated division of the world between Believers and Infidels (that is, all non-Muslims), between the lands controlled by the former, Dar al-Islam, and the lands still controlled by the Infidels, Dar al-Harb (the House of War). That war is made necessary by the failure of those Infidels to allow the “Peace” of Islam to descend, as it ultimately must, over all the world. This belief-system mandates as a duty participation in the Jihad (struggle) to remove all obstacles everywhere, put up by Infidels, to the natural spread of Islam — until everywhere Islam dominates, and Muslims rule, everywhere. Muhammad said it for all time: “Islam is to dominate, and is not to be dominated.”When the First Amendment became essentially part of the Constitution, along with the rest of what is often referred to as the Bill of Rights, back in 1791, the Framers never contemplated Islam as a presence in this country. It made no sense. Muslims could not themselves endure living under the rule of non-Muslims. It was unthinkable that agents or adherents of Islam, ever since its birth the historic enemy of Western Christendom and in its own essence a belief-system unalterably opposed to the essence of Western Civilization, with its emphasis on the individual, and the rights of that individual, and on mental freedom, and free artistic expression, and on so much else that is inimical to Islam, would come here in large numbers. Few could have imagined Muslims in this country, attempting to undermine, as they do everywhere in what they call the Bilad al-kufr, the Land of Unbelief or Lands of the Infidels, the legal and political and moral foundations and institutions that embody them.

The generally accepted view of Islam — the one that not only was to be found in the established churches, but in the newer ones, and not only in the churches but in the views of the deists and freethinkers — by Spinoza, Hume, John Wesley, as later by Mill, and Tocqueville, was best articulated by that great statesman, the learned man, John Quincy Adams. Google “John Quincy Adams” and “Islam” for his analysis. What strikes one is that there was a keen understanding of Islam in the earliest days of the American Republic, but since the 1920s, more or less, there has been a steady falling off — possibly as the result of a decline in the level of intelligence in our political class and the abdication of responsibility by a cultural elite that has itself now been forcibly disbanded by the levelling influences that, for some reason, do noting about growing banana-republic levels of economic inequality that stagger and dismay, but channel all the levelling impulses into the area where they should never have a place — in the fields of education, art, and culture. The current crew of “taking-a-leadership-role” leaders exhibit all this, as does Bush with his shallow and ignorant messianism — bringing “freedom” to “ordinary moms and dads” all over the Middle East, with the thermostat finally turned down from hot to temperature levels a little more acceptably laodicean in Tarbaby Iraq.

But even if we are forced for American Constitutional purposes to accept the notion that the belief-system of Islam is a “religion,” even as we never let up in challenging the basis for that characterization, we need not conclude that the Free Exercise clause is absolute and that it can permit Muslims to refuse to abide by all sorts of rules that are deemed necessary.

A series of cases has upheld as constitutional various infringements on the Free Exercise of religion. In Goldman v. Weinberger, for example, the ban in the Air Force on pilots wearing certain headgear — in this case, a yarmulke or kippah — was upheld, for the Air Force rule was demonstrated to make sense in furtherance of an important state interest. In Employment Division v. Smith, the claim that the smoking of peyote was part of a religious ritual, and could not be subject to the law, was denied because the law itself met a new test — the “rule of general applicability.”

There have been more recent statutes, passed by those who wish to limit the scope of what they see as government infringement on Free Exercise, including the Religious Freedom Restoration Act, and something known as RLUIPA, the “Religious Land Use and Institutionalized Persons Act” — but here I don’t have the time to investigate and find out the current tests employed. But surely, in prisons, the state has a large claim to be able to regulate, for security reasons, all kinds of things.

But the statement by Wan J. Kim that “Americans are not required to abandon their religious beliefs when they report to work” is a false statement of the case. No guard is being required to “abandon” his beliefs. Unlike in Islam, in this country there really is “no compulsion in religion.” But when the Air Force says that a kippah may not be worn, or for that matter a Sikh turban, it is not requiring Jewish or Sikh pilots to “abandon their religious beliefs.” We know perfectly well that beliefs can be maintained, but that certain practices — for example, any religion that had sacrifice of children, or vestal virgins deliberately divested, or any variant on the burnt-offering problem, would not be permitted to continue, even though those who believe in them would not, in being forced to end such practices, have been forced to “abandon their religious beliefs.”

The remark by Wan Kim was silly and dangerous. There are places, above all others, where the state can justify its putting limits, not on beliefs, but on certain practices including outward and visible signs of one’s adherence to this or that belief-system: in the military and in prisons, certainly.

The obvious self-identification of a guard as a Muslim might intimidate or worry non-Muslim prisoners. Similarly, it might be a signal to Muslim prisoners that they may be favored by this fellow member of the umma al-islamiyya, who has been taught that his loyalty is owed entirely to fellow members of that umma, and not to the Infidel nation-state. But American prisons cannot have guards who signal such loyalties to the prisoners. Furthermore, in prisons there is a well-financed and carefully targetted campaign of Da’wa. The evidence for this is overwhelming: this Da’wa is an instrument of Jihad. Such campaigns are taking place in prisons all over North America and Western Europe. There is a special effort made to recruit those deemed, as members of racial or certain ethnic minorities, particularly susceptible to the idea of Islam as the current vehicle of protest, or of alienation, or of hatred, of the “System.”

If guards were allowed to parade their adherence to Islam, it is possible that some of the prisoners, considering whether to convert to Islam, might think that would be a way to please those guards or to win favors that they are unlikely to win from non-Muslim guards, who show no special loyalty to “Christian” or other prisoners, but are just doing their job. It is this aspect that is perhaps most worrisome: the outward display by guards of their belonging to the umma may support those campaigns of Da’wa in prisons –and this must not be permitted.

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